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Full-Text Articles in Law
Circuit Split Deepened By Second Circuit's 'Functional' Test Application In Recent Section 1782 Ruling, Peter B. Rutledge, Emina Sadic Herzberger
Circuit Split Deepened By Second Circuit's 'Functional' Test Application In Recent Section 1782 Ruling, Peter B. Rutledge, Emina Sadic Herzberger
Popular Media
Federal law authorizes district courts to order discovery for use in a proceeding before a "foreign or international tribunal." While that law, 28 U.S.C. § 1782, permits interested persons to request such discovery, neither the statutory language nor Supreme Court jurisprudence definitively resolves whether private arbitral tribunals fall within its scope. Unsurprisingly, the lack of clear guidance on this matter has triggered a circuit split, with the Second and Fifth Circuits generally declining to extend § 1782 to private arbitral tribunals while the Fourth and Sixth Circuits broadly interpret the statutory language to apply § 1782 to private arbitral tribunals. …
Regulating Impartiality In Agency Adjudication, Kent H. Barnett
Regulating Impartiality In Agency Adjudication, Kent H. Barnett
Scholarly Works
Which should prevail—the Take Care Clause of Article II or the Due Process Clause? To Justice Breyer’s chagrin, the majorities in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially …